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MARTIN E. SEGAL CO. v. BARTON

June 28, 1985

MARTIN E. SEGAL COMPANY, Plaintiff, against JOHN W. BARTON, Defendant.


The opinion of the court was delivered by: SWEET

O P I N I O N

SWEET, D.J.

Defendant John Barton ("Barton") has moved to dismiss this diversity-based action pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. Plaintiff Martin E. Segal Co. ("Segal") alleges that Barton has sufficient contacts with New York to support jurisdiction pursuant to CPLR § 302(a)(1). The motion to dismiss is granted.

 Facts

 For the purposes of this motion, the facts will be accepted as alleged by Segal. See Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55 (2d Cir. 1985). This case arises from Barton's former employment with Segal and allegations that Barton has breached certain provisions of a non-competition agreement by continuing to render consulting and actuarial services to Segal's clients through Barton's current employer.

 Segal is a national firm which has its headquarters in New York City. Barton is a citizen and resident of California. In 1974 Barton was hired by Segal as a corporate division representative for the Western region, working in Segal's San Francisco office. During the ten years Barton worked for Segal, he was stationed in California, and he worked with clients based exclusively in California, Washington, or other Western states. On January 1, 1978, while in California, Barton executed a non-competition agreement with Segal.

 During his employment with Segal, Barton consulted with corporate officials in New York, and Barton made several trips to New York at company expense. Segal characterizes these trips as frequent; Barton limits their number. Two such trips were for company-wide meetings of all Segal executives. During other trips, meetings focused on client development, and, at least once, Barton discussed projects and presentations for California clients.

 Barton's paychecks and reimbursements for expenses were paid by checks drawn on a New York account. Barton, however, neither owns nor rents real estate in New York; he has no bank accounts in New York; and he does not maintain an office, home or telephone in New York.

 In July 1984 Barton left Segal and was employed by Mercer-Meidinger Corp. in San Francisco. In working for Mercer, Barton has worked exclusively for California clients and has had no contact with New York.

 Discussion

 Personal jurisdiction in a diversity action is determined by the law of the jurisdiction in which the court sits. United States v. First National City Bank, 379 U.S. 378, 381-82, 13 L. Ed. 2d 365, 85 S. Ct. 528 (1965). The burden of establishing jurisdiction over a defendant rests on the plaintiff, and in the absence of an evidentiary hearing, the plaintiff need make only a prima facie showing that jurisdiction exists. Hoffritz For Cutlery, supra; Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757 (2d Cir. 1983).

 Segal asserts jurisdiction under CPLR § 302(a)(1), which states:

 
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
 
1. transact any business within the state or contracts anywhere to supply goods or ...

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